We recently surveyed a 10 acre tract with an interesting problem. The tract was previously a part of an estate. The estate was divided with part going to the daughter and her husband, our clients (The Smiths) and part to the son, Mr. Brown. The Smith's 10 acres fronts on the county road. Mr. Brown's tract is directly behind the Smith's tract and has no road frontage. The division plat shows an access easement crossing someone else's property to a different county road. It also shows a dirt drive along the eastern side of Smith's Tract with a note that the drive is temporary and no rights will be carried forward. My understanding is that the Smiths allowed Mr. Brown to use that drive while he built his permanent driveway in the easement over someone else's land. They never gave permission for anyone else to use it.
The neighbor to the east, Mrs. Jones, has a "flag lot" with the flagpole portion being 30 feet wide along Smith and Brown's east line. Brown gives Mrs. Jones permission (unbeknownst to the Smiths) to use "his" driveway (the drive shown on the plat as temporary) to access her property.
The Smiths plan to relocate a power company easement to where the "temporary" drive is. The poles will be close to center of the drive.
Now Mrs. Jones has heard about their plans and stated "I won't allow power poles to be placed in MY driveway". She insisted we had the property line wrong until we had a couple pins exposed where she said there were none. Then her argument was "My deed says I have 30 feet of access and its along the driveway". Her tract has legal, planned access via the 30' strip she owns on the east side of Smiths east line, not on the west side of Smiths east line. There are several factors at play. So, best guess, does Jones have any rights to the driveway? The lawyers have it now. I hope we'll find out what the verdict is.
How long has Jones been using the temporary driveway across the Smith's property?
I think she looses. ?ÿHe had no right to convey any interest in his temporary easement to a 3rd party. ?ÿShe has access so there is no necessity. ?ÿ
@t-ford?ÿ
From what I can tell, Jones has used it long enough to satisfy the statutory requirement if this is some sort of adverse claim.
To me, the fact that she thought she had to have permission from someone is an acknowledgement on her part that she doesn't have a RIGHT to use it.
Jones knew permission was needed, so shouldn't be now claiming it "her driveway".
Brown had no authority to give permission to Jones.
Smith apparently never gave permission, so the use by Jones was adverse, and one would think notorious.
Smith allowed this to go on for some unstated time.?ÿ The issue is whether this time and other conditions were sufficient to establish an easement by prescription.?ÿ It can't be by necessity because she has the flagpole strip.
$0.00
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Smith apparently never gave permission, so the use by Jones was adverse, and one would think notorious.
Perhaps Jones can adversely possess because Brown was using it under his permission, adverse to Smith??ÿ
Somewhere there is a lawyer that would consider this a reasonable argument.
This, among other things, is why our profession will forever have relevance.?ÿ
The permission was given to a 3rd party by someone not authorized to do. The 3rd party is using the driveway adverse to the record owner ever since. So there is a possibility prescription has occurred.
Jones probably has a case for a prescriptive easement.?ÿ That said, it's not really a survey issue, except to be noted on your plan.?ÿ
From here, no idea who'll prevail, but it might come down to who makes it the bigger issue.?ÿ Smith could have the poles put up, and then barricade the entrance to the driveway.?ÿ Then Jones would have decide whether it's worth going to court vs spending some of that money on a building a driveway
Don't know about the likelihood of prescriptive rights, but out of equity, she should have no claim at all. If she has been using it for 20 years and no one has said boo about it, she very well could win in court. That win would give me a very bad taste in my mouth.
This is a tricky one, I don't believe adverse possession applies because there is no mention of any sort of dispute over it's use.?ÿ Complicating the fact is that the driveway to Brown's lot is platted as being temporary and for the purpose of Brown accessing his parcel, not to mention, Brown had no right to grant the use of the temporary easement to others.
Obviously, I am not an attorney, but, my gut feeling is to have the Smith's to file the plan to extinguish the temporary easement and construct the poles down the middle of the drive.?ÿ Smith never officially allowed Jones access, and, again, Brown had no right to.?ÿ If I'm not mistaken, it was also said that Jones already has an easement on her side of the line to provide access.?ÿ
Because of the unique twist to this case it??ll be interesting to learn the outcome.
Please keep us posted Stacy.
We do a good bit of work that goes through the attorney that represents our clients so I hope I'll be able to hear the outcome. I will definitely post it if I find out.
